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com/> Digests and notes of recent cases decided by the Supreme Court of the Philippines Wednesday, October 28, 2009 Selected Cases in Provisional Remedies <http://www.philjuris.com/2009/10/selected-cases-in-provisional-remedies.h tml> PRELIMINARY ATTACHMENT Sta. Ines vs. Macaraeg, December 2, 1998 Specifically, attachment is a juridical institution intended to secure the outcome of the trial. xxx The overriding purpose of attachment is to secure a contingent lien on defendant's property until plaintiff can, by appropriate proceedings, obtain a judgment and have such property applied to its satisfaction, or to make provision for unsecured debts in cases where the means of satisfaction thereof are liable to be removed beyond the jurisdiction or improperly disposed of or concealed, or otherwise placed beyond the reach of creditors. xxx Indeed attachment is primarily in aid of creditors. As used in the rules, however, the term, "creditors", should not be construed in its strict, technical sense. Rather, it should be given a broad construction as to embrace not only a creditor established as such by a contractual relation alleged in the complaint but also all parties who put in suit demands, accounts, interests or causes of action, for which they might recover in the suit any debt or damages. Chuidian vs. Sandiganbayan, January 19, 2001 The rule contemplates that the defect must be in the very issuance of the attachment writ. Supervening events which may or may not justify the discharge of the writ are not within the purview of this particular rule. When the preliminary attachment is issued upon a ground. which is at the same time the applicant's cause of action, the defendant is not allowed to file a motion to dissolve the attachment under Section 13 of Rule 57 by offering to show the falsity of the factual averments in the plaintiff's application and affidavits on which the writ was based, the reason being that the hearing on such a motion for dissolution of the writ would be tantamount to a trial of the merits of the action. Thus, this Court has time and again ruled that the merits of the action in which a writ of preliminary attachment has been issued are not triable on a motion for dissolution of the attachment, otherwise an applicant for the lifting of the writ could force a trial of the merits of the case on a mere motion. Moreover, we have held that when the writ of attachment is issued upon a ground which is at the same time the applicant's cause of action, the only other way the writ can be lifted or dissolved is by a counterbond,

in accordance with Section 12 of the same rule. To reiterate, there are only two ways of quashing a writ of attachment: (a) by filing a counterbond immediately; or (b) by moving to quash on the ground of improper and irregular issuance. These grounds for the dissolution of an attachment are fixed in Rule 57 of the Rules of Court and the power of the Court to dissolve an attachment is circumscribed by the grounds specified therein. PBC vs. CA, February 23, 2001 The petitioner's prayer for a writ of preliminary attachment hinges on the allegations which are couched in general terms devoid of particulars of time, persons and places to support such a serious assertion that "defendants are disposing of their properties in fraud of creditors." There is thus the necessity of giving to the private respondents an opportunity to ventilate their side in a hearing, in accordance with due process, in order to determine the truthfulness of the allegations. But no hearing was afforded to the private respondents the writ having been issued ex parte. A writ of attachment can only be granted on concrete and specific grounds and not on general averments merely quoting the words of the rules. Time and again, we have held that the rules on the issuance of a writ of attachment must be construed strictly against the applicants. This stringency is required because the remedy of attachment is harsh, extraordinary and summary in nature. If all the requisites for the granting of the writ are not present, then the court which issues it acts in excess of its jurisdiction. PRELIMINARY INJUNCTION Dadizon vs. Asis, January 15, 2004 Issuance of said writ is entirely within the discretion of the trial court. The only limitation is that this discretion should be exercised based upon the grounds and in the manner provided by law. The requisites for injunctive relief are (1) there must be a right in esse or the existence of a right to be protected; and (2) the act against which the injunction is to be directed is a violation of such right. Tayag vs. Lacson, March 25, 2004 The only issue before the appellate court was whether or not the trial court committed a grave abuse of discretion amounting to excess or lack of jurisdiction in denying the respondents motion to deny or dismiss the petitioners plea for a writ of preliminary injunction. Not one of the parties prayed to permanently enjoin the trial court from further proceeding with the case or to dismiss the complaint. By permanently enjoining the trial court from proceeding with the case, the appellate court acted arbitrarily and effectively dismissed the complaint motu proprio, including the counterclaims of the respondents and that of the defendants-tenants. The defendants-tenants were even deprived of their right to prove their special and affirmative defenses. Land Bank vs. Listana, August 5, 2003

Clearly, the grant of a writ of preliminary injunction is in the nature of an interlocutory order, hence, unappealable. The proper remedy of a party aggrieved by such an order is to bring an ordinary appeal from an adverse judgment in the main case, citing therein the grounds for assailing the interlocutory order. However, the party concerned may file a petition for certiorari where the assailed order is patently erroneous and appeal would not afford adequate and expeditious relief. Therefore, respondent s special civil action for certiorari before the Court of Appeals was the correct remedy under the circumstances. Savellano v. CA, January 30, 2001 In fine, petitioner has not made out a clear case, free from any taint of doubt or dispute, to warrant the issuance of a prohibitory mandatory injunction. It is true that he possesses certificates of title in his name covering several parcels of land located in San Mateo, Rizal. But inasmuch as it relates solely to the issuance of a writ of injunction, the issue is not one of ownership but, as correctly noted by the appellate court, "whether or not the titles of (petitioner) cover the premises being occupied by the (private respondents)." Private respondents vigorously maintain that the property being occupied by them lies outside of the property covered by petitioner s certificates of title. While it may have been desirable for them to produce certificates of title over the property which they occupy, the absence thereof for purposes of the issuance of the writ does not militate against them. And if the defense interposed by them is successfully established at the trial, the complaint will have to be dismissed. The effect of the preliminary prohibitory and mandatory injunctions issued by the lower court is to dispose of the main case without trial. Private respondents will have to be hurled off into the streets, their houses built on the premises demolished and their plantings destroyed without affording them the opportunity to prove their right of possession in court. In view of the rights to be affected through the issuance of injunctions, courts should at best be reminded that "(t)here is no power the exercise of which is more delicate which requires greater caution, deliberation and sound discretion, or which is more dangerous in a doubtful case, than the issuing of an injunction." Shin vs. CA, February 6, 2001 Before a writ of preliminary injunction may be issued, there must be a clear showing by the complaint that there exists a right to be protected and that the acts against which the writ is to be directed are violative of the said right. As the facts reveal, petitioners are in effect sublessees, having leased the land from a lessee of the property. "A sublessee can invoke no right superior to that of his sublessor. The sublessees right, if any, is to demand reparation for damages from his sublessor, should the latter be at fault. The sublessees can only assert such right of possession as could have been granted them by their sublessor, their right of possession depending entirely upon that of the latter. Considering that the lessor and real owner of the property manifested objections to the improvements introduced by petitioners and the subsequent termination of the lease contract between the lessor-owner and the lessee-sublessor, petitioners, being mere

sublessees, are not in a position to assert any right to remain on the land. Therefore, the Court of Appeals did not err in setting aside the writ of preliminary injunction that the trial court issued. Spouses Crystal v. Cebu International School, April 4, 2001 A writ of preliminary injunction is issued only upon proof of the following: (1) a clear legal right of the complainant, (2) a violation of that right, and (3) a permanent and urgent necessity for the writ to prevent serious damage. Unlike an ordinary preliminary injunction which is a preservative remedy, a writ of preliminary mandatory injunction requires the performance of a particular act that tends to go beyond maintaining the status quo and is thus more cautiously regarded. Hence, the applicant must prove the existence of a right that is "clear and unmistakable." Even assuming that petitioners have a clear and unmistakable legal right, they are still not entitled to a writ of preliminary mandatory injunction. They have not shown any urgent and permanent necessity for it, considering that Monica Claire and Frances Lorraine are already enrolled at the Colegio de Immaculada Concepcion. In other words, there is no more need for the issuance of a writ of mandatory injunction to compel the school to admit them. Valencia vs. CA, February 19, 2001 On the prayer for a writ of preliminary injunction, there are three requisites for the grant of the same: 1) The invasion of the right is material and substantial; 2) The right of complainant is clear and unmistakable; 3) There is an urgent and paramount necessity for the writ to prevent serious damage. Petitioner merely alleged the presence of these elements, but did not substantiate the same with convincing evidence. Consequently, we find no meritorious reason for the issuance of said writ. Gonzales vs. State Properties, January 25, 2001 Nonetheless, the 1997 rule barring the raffle of these cases without effecting the service of summons is not absolute. As earlier noted, the second paragraph of Section 4 (c) of Rule 58 clearly provides that the service of summons may be dispensed with "where the summons could not be served personally or by substituted service despite diligent efforts." Furthermore, even Justice Feria opines that the exceptions to the rule are the same as those in Section 5 of Rule 57, the second paragraph of which reads thus: "The requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served personally or by substituted service despite diligent efforts, or the defendant is a resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem." In the present case, respondent was able to show that the whereabouts of the other defendants were unknown, and that summons could not be served personally or by substituted service. Hence, it cannot be required to serve such summons prior to or contemporaneous with the notice of raffle. The raffle, therefore, may proceed even without notice to and the presence of the said adverse parties.

Manansala vs. CA, January 20, 2000 Generally, injunction is a preservative remedy for the protection of one s substantive right or interest. It is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit. It is resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard compensation. The application of the injunctive writ rests upon the existence of an emergency or of a special reason before the main case can be regularly heard. The essential conditions for granting such temporary injunctive relief are that the complaint alleges facts which appear to be sufficient to constitute a proper basis for injunction and that on the entire showing from the contending parties, the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation. Two requisites are necessary if a preliminary injunction is to issue, namely, the existence of a right to be protected and the facts against which the injunction is to be directed are violative of said right. In particular, for a writ of preliminary injunction to issue, the existence of the right and the violation must appear in the allegation of the complaint and a preliminary injunction is proper only when the plaintiff (private respondent herein) appears to be entitled to the relief demanded in his complaint. Unionbank vs. CA, August 5, 1999 There is, moreover, nothing erroneous with the denial of private respondents application for preliminary prohibitory injunction. The acts complained of have already been consummated. It is impossible to restrain the performance of consummated acts through the issuance of prohibitory injunction. When the act sought to be prevented had long been consummated, the remedy of injunction could no longer be entertained, hearing the application for preliminary injunction would just be an exercise in futility. Gateway vs. Land Bank, July 30, 2003 A writ of mandatory injunction requires the performance of a particular act and is granted only upon a showing of the following requisites (1) the invasion of the right is material and substantial; (2) the right of a complainant is clear and unmistakable; and (3) there is an urgent and permanent necessity for the writ to prevent serious damage. Since it commands the performance of an act, a mandatory injunction does not preserve the status quo and is thus more cautiously regarded than a mere prohibitive injunction. Accordingly, the issuance of the former is justified only in a clear case, free from doubt and dispute. Marohombsar vs. Adiong, January 22, 2004 A TRO is generally granted without notice to the opposite party and is intended only as a restraint on him until the propriety of granting a temporary injunction can be determined. It goes no further than to preserve the status quo until that determination. Respondent judge was justified in issuing the TRO ex parte due to his assessment of the urgency of the relief sought.

Merontos vs. Zerna, August 9, 2001 A temporary restraining order (TRO) may be issued ex parte by an executive judge in matters of extreme emergency, in order to prevent grave injustice and irreparable injury. Because such issuance of a TRO shall be effective only for seventy-two hours therefrom, as provided under Administrative Circular No. 20-95, the ex-parte issuance of a 20-day TRO is unauthorized and may make the judge administratively liable. The Circular aims to restrict the ex parte issuance of a TRO only to cases of extreme urgency, in order to avoid grave injustice and irreparable injury. Such TRO shall be issued only by the executive judge and shall take effect only for seventy-two (72) hours from its issuance. Furthermore, within the said period, a summary hearing shall be conducted to determine whether the Order can be extended for another period until a hearing on the pending application for preliminary injunction can be conducted. Untenable is respondent judge s contention that the Circular allows an executive judge, in case of extreme urgency, to issue an ex parte TRO effective for twenty days. RECEIVERSHIP Commodities vs. CA, June 19, 1997 A petition for receivership under Section 1 (b) of Rule 59 requires that the property or fund which is the subject of the action must be in danger of loss, removal or material injury which necessitates protection or preservation. The guiding principle is the prevention of imminent danger to the property. If an action by its nature, does not require such protection or preservation, said remedy cannot be applied for and granted. SUPPORT Lam vs. Chua, March 18, 2004 Thus, there is no merit to the claim of Jose that the compromise agreement between him and Adriana, as approved by the Makati RTC and embodied in its decision dated February 28, 1994 in the case for voluntary dissolution of conjugal partnership of gains, is a bar to any further award of support in favor of their child John Paul. The provision for a common fund for the benefit of their child John Paul, as embodied in the compromise agreement between herein parties which had been approved by the Makati RTC, cannot be considered final and res judicata since any judgment for support is always subject to modification, depending upon the needs of the child and the capabilities of the parents to give support. Labels: Provisional Remedies <http://www.philjuris.com/search/label/Provisional%20Remedies>, Remedial Law <http://www.philjuris.com/search/label/Remedial%20Law> 8 comments: Anonymous said... [B]NZBsRus.com[/B]

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News philippines law court <_nolink_> *Philippines* cybercrime *law* argued <http://www.upi.com/Top_News/World-News/2013/01/29/Philippines-cybercrime-law-ar gued/UPI-20081359501893/> UPI.com - Jan 30, 2013 - 10 hours ago The Supreme *Court* heard arguments on that provision of the *law* and another one that allows the government to collect data on the origin and destination of electronic messages, the *Philippine* Daily Inquirer reported. The Cybercrime Protection Act was *...* Related Articles <http://news.google.com/news/story?ncl=dw6Rl3ToKaJj06MDt33y5Asr1vGYM&hl=en&ned=u s> clipped from Google - 1/2013 <http://code.google.com/apis/ajaxsearch/faq.html> China, the *Philippines* and the Rule of *Law* <http://www.huffingtonpost.com/daniel-wagner/china-philippines-rule-law_b_253373 6.html> Huffington Post - Jan 24, 2013 - Jan 24, 2013 These provisions of the Convention refer to "Compulsory Procedures Entailing Binding Decisions" issued by at least four venues: the International Tribunal on the *Law* of the Sea, the International *Court* of Justice, an "arbitral tribunal" which may refer *...* Related Articles <http://news.google.com/news/story?ncl=dXpjrJ79_neCXIMIMYWv3dcauwryM&hl=en&ned=u s> clipped from Google - 1/2013 <http://code.google.com/apis/ajaxsearch/faq.html> Canadian man accused of opening fire in *Philippine court* building, killing 2 <http://www.cnn.com/2013/01/22/world/asia/philippines-court-shooting/index.html> CNN - Jan 22, 2013 - Jan 22, 2013 (CNN) -- A Canadian man is accused of opening fire in a *court* building in the *Philippines* on Tuesday, killing two people and wounding himself and one other person, authorities said. The incident is likely to add to the debate over stricter controls on *...* Related Articles <http://news.google.com/news/story?ncl=dYFNCqJS5ypx83MD0VoptEHHp6oeM&hl=en&ned=u s> clipped from Google - 1/2013 <http://code.google.com/apis/ajaxsearch/faq.html> Supreme *Court* asked to junk RH *law* <http://www.sunstar.com.ph/manila/local-news/2013/01/02/supreme-court-asked-junk -rh-law-260896> Sun.Star - Jan 02, 2013 - Jan 02, 2013 MANILA (Updated) -- Opponents of the recently signed Reproductive Health

(RH) *law* asked the Supreme *Court* (SC) on Wednesday to nullify the measure for allegedly threatening the Filipino culture s value for life. Filing on behalf of their minor children *...* Related Articles <http://news.google.com/news/story?ncl=dzWzn7KtR6jxr7MLiC7gVIEZamiDM&hl=en&ned=u s> clipped from Google - 1/2013 <http://code.google.com/apis/ajaxsearch/faq.html> powered by <//www.blogger.com/rearrange?blogID=6184390903088870572&widgetType=NewsBar&widge tId=NewsBar1&action=editWidget&sectionId=sidebar> <//www.blogger.com/rearrange?blogID=6184390903088870572&widgetType=HTML&widgetId =HTML4&action=editWidget&sectionId=footer>